In this proceeding by the executrix, the estate sought possession of decedent's real property from the surviving spouse, her infant child and any and all other persons or entities in possession of the premises. Additionally, the executrix sought "a monetary judgment for use and occupancy payments against Maria Del Pilar Arbelaez Seviroli," the surviving spouse, (hereinafter "Maria Seviroli") plus interest from October 1, 2002 and monthly use and occupancy for each month thereafter, plus attorneys fees, costs and disbursements. This court granted the executrix partial summary judgment on the issue of possession and set down the issue of the reasonable value of use and occupancy for trial (Matter of Kazuba, 2 Misc 3d 1003 A, 2004 NY Misc. LEXIS 178, 2004 NY Slip Op 50128U). The court adhered to that determination upon reargument (Matter of Kazuba, 4 Misc 3d 1014 A, 2004 NY Misc. LEXIS 1370, 2004 NY Slip Op 50879U). Maria Seviroli appeared in this proceeding individually and as the guardian of the property of the infant, John Joseph Seviroli (see verified answer dated February 6, 2003). The infant has also appeared by his guardian ad litem appointed by this court (see, Matter of Seviroli, Decision No. 986, December 5, 2002). A trial was had before this court on September 20, 2004 on the issue of the reasonable value of the use and occupancy of the decedent's condominium. At the trial, counsel for the surviving spouse moved to dismiss the petition as against the infant, John Joseph Seviroli, on the claim for use and occupancy. He asserted the only issue is whether Mrs. Seviroli is personally liable for use and occupancy. This court determined to have a fact finding hearing on the value of use and occupancy and directed the parties to submit post trial memoranda on the issue of liability, if any, for the reasonable value of use and occupancy of the premises. Mrs. Seviroli moves as the guardian of the infant's property pursuant to CPLR 3211(a)(7) to dismiss the petition with prejudice against the infant on the grounds that the petition fails to state a cause of action against the infant for the fair and reasonable value of the use and occupancy of the premises. Additionally, she argues that the petition fails to state a cause of action against her individually for the reasonable value of the use and occupancy and that petitioner has failed to show the value of use and occupancy for the appropriate period of time. Analysis of the factual background and the procedural history of the case is necessary to determine these preliminary issues of liability for use and occupancy.